NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA MONSERRAT MORENO- No. 19-72944 VALENCIA, AKA Francisca Valencia, AKA Francisca Valencia Acuna, AKA Agency No. A206-093-375 Maria de Monserrat Moreno Valencia, Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 8, 2021** Seattle, Washington Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges. Maria Monserrat Moreno-Valencia petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from the order of the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 4 immigration judge (IJ) denying her motion to continue proceedings and her application for cancellation of removal. She also argues that her waiver of counsel at the removal hearing was invalid. We grant the petition as to the motion to continue proceedings and dismiss as to the other claims for lack of jurisdiction. 1. A decision regarding whether a pending petition for collateral relief provides “good cause” to continue removal proceedings “must focus principally on two factors: (1) the likelihood that the alien will receive the collateral relief, and (2) whether the relief will materially affect the outcome of the removal proceedings.” Matter of L-A-B-R-, 27 I. & N. Dec. 405, 413 (A.G. 2018). “[T]here is a rebuttable presumption that an alien who has filed a prima facie approvable [U-visa] application with the USCIS will warrant a favorable exercise of discretion for a continuance for a reasonable period of time.” Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 815 (BIA 2012). Beyond this “most important consideration,” the decision “must also consider any other relevant factors,” such as “administrative efficiency.” L-A-B-R-, 27 I. & N. Dec. at 415. However, “delays in the USCIS approval process are no reason to deny an otherwise reasonable continuance request. . . . If approval can wait, then surely removal can also wait.” Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011). The IJ did not apply this standard to Moreno-Valencia’s request to continue her removal proceedings based on her pending petition for a U-visa. The IJ based Page 3 of 4 his denial only on the irrelevant fact that Moreno-Valencia’s ex-husband had already “been deported based on her report of his criminal activity.” The BIA also failed to apply the proper standard. The BIA did not refer to the likelihood that Moreno-Valencia would receive a U-visa or to whether the grant of a U-visa would materially affect her removal proceedings. Instead, the sole fact the BIA offered to support its decision was the lengthy “average processing time” for the USCIS to decide U-visa petitions. But if Moreno- Valencia’s request was “otherwise reasonable,” the USCIS’s inefficiency …
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